Wash. Times, WSJ launch bogus attack on Kagan's Commerce Clause testimony

Wash. Times falsely claims that Kagan said Commerce Clause “limits Congress only if a law cannot be shown to have any effect ... on economic activity.” From a July 7 Washington Times editorial:

With an eye on the mandates contained in Obamacare, Sen. Tom Coburn, Oklahoma Republican, asked Ms. Kagan if a Congress that purportedly has the power to force people to buy health insurance could also tell Americans they must buy and eat “three vegetables and three fruits every day.” Ms. Kagan's misleading response: “I think that the question of whether it's a dumb law is different from the question of whether it's constitutional, and I think that courts would be wrong to strike down laws that they think are senseless just because they're senseless.” Pressed by the senator, Ms. Kagan said the Commerce Clause of the Constitution limits Congress only if a law cannot be shown to have any effect -- any at all -- on economic activity.

WSJ suggests that Kagan's statement that Congress can regulate any activity that “would substantially affect interstate commerce” is controversial. From a July 13 Wall Street Journal editorial:

Ms. Kagan danced around the history of Commerce Clause jurisprudence, but in one response to Senator Coburn she did betray a bias for a very expansive reading of Congress's power.

The Commerce Clause has “been interpreted to apply to regulation of any instruments or instrumentalities or channels of commerce,” she said, “but it's also been applied to anything that would substantially affect interstate commerce.” Anything?

Kagan's Commerce Clause testimony echoes statements by all sitting justices

Kagan testified that Commerce Clause has been interpreted to apply “to anything that would substantially affect interstate commerce” but not “non-economic activities.” Contrary to the Times' false assertion that Kagan “said the Commerce Clause of the Constitution limits Congress only if a law cannot be shown to have any effect -- any at all -- on economic activity,” Kagan actually testified that the Supreme Court has said that the Commerce Clause allows Congress to regulate activity that “substantially affect[s] interstate commerce.” She did not say that Congress could regulate activity as long as it had “any effect ... on economic activity.”

From Kagan's testimony in response to questioning by Sen. Tom Coburn (R-OK):

We live in a -- in a -- in a government in which Congress's authorities are enumerated in Article I of the Constitution, and Congress can't act except under one of those heads of authority.

Now, as I talked about with Senator Cornyn, the commerce clause has been interpreted broadly. It's been interpreted to apply to regulation of any instruments or instrumentalities or channels of commerce, but it's also been applied to anything that would substantially affect interstate commerce.

It has not been applied to non-economic activities, and that's the teaching of Lopez and Morrison, that the court -- that the Congress can't regulate non-economic activities, especially to the extent that those activities have traditionally been regulated by the states. And I think that that would be the question that the court would ask with respect to any case of this kind.

Scalia, Thomas, and Kennedy joined opinion saying that Commerce Clause grants Congress the power to regulate “activities that substantially affect interstate commerce.” In United States v. Lopez, a five-justice majority ruled that Congress did not have the power under the Commerce Clause to enact the Gun Free School Zones Act, The majority opinion was written by then-Chief Justice William Rehnquist and joined by retired Justice Sandra Day O'Connor as well as current Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. The majority opinion specifically reaffirmed that Congress has the power to regulate “activities that substantially affect interstate commerce.”

From the majority opinion:

Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez v. United States, supra, at 150; see also Hodel v. Virginia Surface Mining & Reclamation Assn., supra, at 276-277. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at 256 (" '[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.' " (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)). Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e.g.,Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 ("[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or . . . thefts from interstate shipments (18 U.S.C. § 659)"). Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, Jones & Laughlin Steel, 301 U. S., at 37, i.e., those activities that substantially affect interstate commerce. Wirtz, supra, at 196, n. 27.

Within this final category, admittedly, our case law has not been clear whether an activity must “affect” or “substantially affect” interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause. Compare Preseault v. ICC, 494 U.S. 1, 17 (1990), with Wirtz, supra, at 196, n. 27 (the Court has never declared that “Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities”). We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce.

[...]

These are not precise formulations, and in the nature of things they cannot be. But we think they point the way to a correct decision of this case. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

Ginsburg and Breyer likewise joined opinion saying “Congress has the power to regulate activities that substantially affect interstate commerce.” In Gonzales v. Raich, the Supreme Court upheld a federal statute outlawing possession of marijuana even if the marijuana is grown and used solely by the same person for medicinal reasons. The majority opinion -- written by retired Justice John Paul Stevens and joined by current Justices Ruth Bader Ginsburg, Stephen Breyer, and Kennedy -- also stated that “Congress has the power to regulate activities that substantially affect interstate commerce.”

From the majority opinion in Gonzales v. Raich:

Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U.S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). Only the third category is implicated in the case at hand.

Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151; Wickard v. Filburn, 317 U.S. 111, 128--129 (1942). As we stated in Wickard, “even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.

Alito wrote that Supreme Court has said Commerce Clause extends to ”regulation of 'activities that substantially affect interstate commerce.' " As a member of the U.S. Court of Appeals for the 3rd Circuit, Samuel Alito dissented from a Third Circuit panel decision upholding the federal statute outlawing machine gun possession. From Alito's dissent in United States v. Rybar:

In Lopez, the Supreme Court identified “three broad categories” of legislation permitted under the Commerce Clause: (1) regulation of “the use of the channels of interstate commerce,” (2) regulation and protection of “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and (3) regulation of “activities that substantially affect interstate commerce.”

Sotomayor wrote that Congress can regulate “those activities that substantially affect interstate commerce.” From Sotomayor's unanimous opinion in United States v. Giordano, a case she dealt with as a member of the U.S. Court of Appeals for the 2nd Circuit:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Roberts wrote that Supreme Court allows Congress to regulate activity that “substantially affects interstate commerce.” In Rancho Viejo LLC v. Norton, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected a constitutional challenge to regulations to protect the arroyo toad under the Endangered Species Act. The full court declined to rehear the case. John Roberts -- a D.C. Circuit judge at the time -- dissented from the denial of rehearing, and in that dissent asserted that the Supreme Court has interpreted the Commerce Clause to allow regulation of “activity” that “substantially affects interstate commerce.”

From Roberts' dissent:

The panel's opinion in effect asks whether the challenged regulation substantially affects interstate commerce, rather than whether the activity being regulated does so. Thus, the panel sustains the application of the Act in this case because Rancho Viejo's commercial development constitutes interstate commerce and the regulation impinges on that development, not because the incidental taking of arroyo toads can be said to be interstate commerce. See Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1071-73 (D.C.Cir.2003).

Such an approach seems inconsistent with the Supreme Court's holdings in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).